Administrative Law ~ judicial review - decision by Royal Commissioner to call applicant to give evidence - issue of subpoenas - whether a decision to which Judicial Review Act applies ~ whether a decision made under an enactment - issue of letters patent pursuant to royal prerogative or Royal Commissions Act - whether step preparatory to report may be a decision - Commissioner's terms of reference ~- whether questions proposed to be asked are within terms of reference - order forbidding publication of reference to person - motion to set aside subpoena to Commissioner to produce documents - admissibility of statement pursuant to s.13(1) of Judic1al Review Act made without prejudice - application to amend and add grounds introducing question of bona fides of respondent Administrative Decisions (Judicial Review) Act 1977, ss. 3(1), 3(3), 5, 6, 13(1), 13(11) Royal Commissions Act 1902 (Comm) ss. 1A, 6, 6H Federal Court of Australia Act 1976 s.50 PETER HUGH LLOYD v. FRANCIS XAVIER COSTIGAN ESQUIRE Q.C. ROYAL COMMISSIONER ON THE ACTIVITIES OF THE FEDERATED SHIP PAINTERS AND DOCKERS UNION No. WAG 50 of 1982 Toohey J. Perth 5 August 1983 or a IN THE FEDERAL COURT OF AUSTRALTA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION JUDGE MAKING ORDER No. WAG 50 of 1982 BETWEEN: PETER HUGH LLOYD Applicant and FRANCIS XAVIER COSTIGAN ESQUIRE Q.C. ROYAL COMMISSIONER ON THE ACTIVITIES OF THE FEDERATED SHIP PAINTERS AND DOCKERS UNION Respondent ORDER Toohey J. DATE OF ORDER WHERE MADE 5 August 1983 Perth THE COURT ORDERS THAT: 1. The application dated 9 December 1982 be dismissed. The respondent have leave to apply for the costs of the application. fa IN THE FEDERAL COURT ) OF AUSTRALIA ) WESTERN AUSTRALIA ) No. WAG 50 of 1982 DISTRICT REGISTRY ) GENERAL DIVISION ) BETWEEN: PETER HUGH LLOYD Applicant and FRANCIS XAVIER COSTIGAN ESQUIRE Q.C. ROYAL COMMISSIONER ON THE ACTIVITIES OF THE FEDERATED SHIP PAINTERS AND DOCKERS UNION Respondent CORAM: TOOHEY J. 5 August 1983 REASONS FOR JUDGMENT This application, under the provisions of the Administrative Decisions (Judicial Review) Act 1977, is to review what 1s described as : "... the decision of the Respondent (hereinafter 'the Commissioner') that he may call before him pursuant to subpoena and examine on oath or cause to be examined on oath before him the Applicant and Kevin J.D. Bain in relation to transactions by Charles Catt & Son Pty. Ltd., Alan C. Brooker, June A. Brooker, the said Kevin J.D. Bain and Emma E. Bain (hereinafter 'the clients' transactions)". It is also one to review : "... conduct in which the Commissioner proposes to engage whereby he proposes to receive evidence in relation to the clients' transactions". The application was filed on 9 December 1982 and since that time there have been several hearings on interlocutory matters. There was a decision of mine on 25 March 1983, an appeal from that decision to the Full Court which delivered judgment on 9 May, and a further decision by me on 6 July. At the time of writing these reasons for judgment, none of those decisions has been reported. Decision and conduct to be reviewed. The decision and conduct sought to be reviewed in this application are those of Mr. F.X. Costigan Q.C. as Commissioner inquiring into the activities of the Federated Ship Painters and Dockers Union. On 18 October 1982 the respondent issued to the applicant two subpoenas returnable on 26 October 1982. One was a subpoena ad testificandum; the other was a subpoena duces tecum to produce - "All notes, resolutions, correspondence, agreements, contracts, balance sheets, statements of account, auditor's reports, payment books, cash books, receipt books, bank books and any and all other likely documents relating to Hamidan Pty. Ltd., Fenmore Pty. Ltd., and/or Brunswick O11 NL and in respect of the period commencing the lst January 1972 to and including the date of service of this summons". Two subpoenas were issued to Mr. Bain, returnable on 7 December 1982. One was a subpoena ad testificandum; the other was a subpoena duces tecum to produce - "All documents relating to your investments in Hamidan Pty. Ltd.". The applicant appeared before the respondent on 26 October. Subsequently he was represented by counsel who submitted to the respondent that he should not require the applicant to give evidence about matters relating to Hamidan Pty. Ltd., a company incorporated in Queensland and involved in an oil drilling jount venture. Counsel further submitted that the respondent should not require the applicant to give evidence relating to Conquistador Mining and Exploration N.L. of which Hamidan was said to be a wholly owned subsidiary. Having heard submissions from counsel for the applicant and from counsel assisting the Commissioner, the respondent delivered a ruling on 8 December 1982, the effect of which was that he proposed to continue with his enquiries and to require the applicant to give evidence. Although the application now before the court is expressed to relate to a decision of the respondent concerning both the applicant and Mr. Bain, the latter is not a party to the application. He is a client of the applicant's firm, Messrs. Dwyer & Thomas, and the applicant has been acting for him and the other persons referred to in the application. In my view the court cannot, in these proceedings, review any decision that Mr. Bain should give evidence. He has not made any application under the Judicial Review Act. And the present applicant Mr. Lloyd 1s not a person "who is aggrieved" by a decision that Mr. Bain should give evidence or by any conduct engaged in by the respondent for the purpose of making such a decision (Judicial Review Act ss. 5, 6). Procedural matters The substantive hearing of this matter began on 14 July but at the outset certain procedural applications were made and some reference to these is necessary. Counsel appeared on behalf of a person, to whom I shall refer as X, who gave evidence before the respondent in 1982. Arising from that evidence, charges have been laid against X under s.6H of the Royal Commissions Act 1902. That section makes it an indictable offence knowingly to give "false testimony touching any matter, material in the inquiry being made by the Commission". Committal proceedings against Xwere to begin in Queensland on 1 August 1983. The activities of the Commission have received a great deal of publicity and much of that publicity has focused on the activities of X. In his counsel's submission, it was apparent that in the course of the hearing before me frequent reference would be made to X and to his activities and a report of these matters could prejudice him 1n relation to the committal proceedings and any trial that might result therefrom. Section 50 of the Federal Court of Australia Act 1976 empowers the court, at any time during or after the hearing of a proceeding in the court, to "make such order forbidding or restricting the publication of particular evidence, or the name of a party or witness, as appears to the Court to be necessary in order to prevent prejudice to the administration of justice ...". Counsel for the parties acknowledged that reference would be made to X. The respondent is not bound by rules of evidence in the inquiry he 1s conducting. I accepted that prejudice to the fair hearing of the charges against X was likely and ordered that the publication in any form of any reference in these proceedings to him or of any information which would or tend to identify him as being a person referred to in the proceedings be prohibited until further order. Shortly before the hearing the applicant served on the respondent a subpoena to produce to the court a number of documents, most of which were portions of the transcript of evidence before the respondent relating to particular IMatters identified in the subpoena. Other documents required to be produced were those tendered in evidence bearing upon particular facts identified in the subpoena. The respondent moved the court to set aside the subpoena. I acceded to the motion because the decision I had given on 6 July had for all practical purposes foreclosed the matter against the applicant. In that decision, which was concerned with a motion for the respondent to answer interrogatories or furnish an additional statement of reasons, I mentioned that there was already before the court a lengthy affidavit by a solicitor attached as an instructing solicitor to the Commission and also a lengthy statement of reasons by the respondent. In those circumstances I concluded that there was sufficient material before the court to enable it to determine the application. The documents sought to be produced under subpoena were essentially directed at matters the subject of the proposed interrogatories and further statement. Following that ruling the applicant objected to the court receiving the statement by the respondent dated 19 May 1983 and expressed to be "statement in writing pursuant to sub-section 13(1) of the Administrative Decisions (Judicial Review) Act 1977". The basis of the objection, as I understand it, was that the respondent had furnished the statement on a "without prejudice" basis, claiming that he had not made a decision to which s.13 applied, in particular that any decision fell within the exclusionary provisions of sub-s. (11) of that section. (These matters are dealt with in my decision of 6 July). In the applicant's submission, the respondent could not thereafter rely upon the statement in an application under the Act. I overruled the objection to admissibility on the basis that, in attaching to the statement a "without prejudice" label, the respondent was doing no more than making 1t clear that he intended nevertheless to argue that there had been no decision to which the Judicial Review Act applied and in any event no decision to which s.13 applied. The applicant also objected to the admissibility of the affidavit of Brendan William Harkin, an instructing solicitor with the Commission. This was the affidavit to which reference has already been made. The affidavit had been filed following a direction by the court that the parties put their evidence in affidavit form. It is unnecessary to canvass the arguments for and against the admissibility of the affidavit. The court having indicated its intention to look at the s.13 statement, counsel for the respondent expressly disavowed any intention to rely upon the affidavit. It remains on the file but is not a document to which the respondent referred in the course of argument and it is not a document upon which I place any reliance in reaching a decision in this matter. There was also an application to amend the application for an order for review. This was acceded to in part by permitting an additional ground in these terms: "(g) That an error of law has been, 1s being, or is likely to be, committed in the course of the conduct or is likely to be committed in the making of the proposed decision". I declined to allow amendments raising what was described as "an improper exercise of the power conferred by the enactment in pursuance of which the decision is proposed to be made". The reason for declining was that such an amendment would introduce questions of the bona fides of the respondent, when the applicant had consistently acknowledged from the outset that those bona fides were not in issue. I can turn now to the substantive matters that were argued during this application. The s.13 statement In furnishing the s.13 statement, to which reference has been made, the respondent did so without prejudice to submissions to be made : "(a) that the Act has no application to the Royal Commission to which I have been appointed; or (b) if it be decided that the Act does so apply, that my Ruling is not a decision to which section 13 of the Act applies". It 1S unnecessary to deal with the second of these matters. The respondent has furnished a statement in conformity with s.13, whether or not he had any obligation to do so. A _'decision'? As to the first of these matters, it should be said by way of preliminary comment that the respondent did not argue that the issue of a subpoena and his ruling that he would continue with his inquiries and would require the applicant to give evidence did not constitute a decision in the ordinary sense of that word. However he did contend that it was not a "decision to which this Act applies" as defined in s.3(1) of the Judicial Review Act. That expression is defined to mean : "... a decision of an administrative character made, proposed to be made, or required to be made, as the case may be (whether in the exercise of a dascretion or not) under an enact- ment, other than a decision by the Governor-General or a decision included in any of the classes of decisions set out in Schedule 1". Schedule 1 has no application in the present case. The respondent argued that his ruling was not a decision of an administrative character but, more fundamentally, that it was not a decision made under an enactment. Decision made under an enactment? The operations of the Commission inquiring into the activities of the Federated Ship Painters and Dockers Union have been the subject of several applications to the Federal Court. In addition to the 1nterlocutory applications arising out of the current matter, there is the decision of Ellicott J. in Ross v. Costigan (1982) 41 ALR 319 and of the Full Court on appeal from that decision, Ross v. Costigan (No. 2) (1982) 41 ALR 337. See also Huston v. Costigan (1982) 45 ALR 559. Although, in the course of these several judgments the court has expressed views 10. relevant to the question whether a decision by the respondent 2s one to which the Act applies, this 1s the farst occasion on which the respondent has expressly and fully under way. 1s an argued that a decision by him is not a decision made an enactment. The respondent's submission may be summed up in this The issue of a commission pursuant to letters patent exercise of the royal prerogative. No statutory authority is necessary for the Governor-General, by letters patent, to direct an inquiry into a matter such as the activities of the Federated Ship Painters and Dockers Union. But, by the end of the 19th century, it was accepted that "the Crown could not by an exercise of prerogative power authorise a commissioner to compel testimony" (Mason J. in Victoria v. Builders Labourers' Federation (1982) 41 ALR 71 at p.113, echoing Dixon J. in McGuinness v. Attorney General (Vic) (1940) 63 CLR 73 at p.98). Where the Commonwealth executive seeks, through the machinery of the Royal Commissions Act 1902, to use coercive powers to compel the attendance of a person before a commission, questions may arise as to the constitutional authority of the Commonwealth to inquire into the matter in question. That issue does not arise here. The applicant, as will appear, contends that the area of inquiry on which the respondent wishes to embark so far as the applicant 1s concerned 1s outside his terms 11. of reference. But it is not suggested that the terms of reference themselves are beyond the constitutional validity of the Commonwealth. If letters patent are issued in exercise of the royal prerogative, so the argument continues, a decision made by a commissioner is a decision made in exercise of the prerogative power as delegated. It 1s not a decision under an enactment, in particular it is not a decision under the Royal Commissions Act. Section 1A of the Royal Commissions Act, the applicant contends, is merely declaratory of the common law and 1s not itself a source of authority for the issue of letters patent. That section reads : "1A. Without in any way prejudicing, limiting, or derogating from the power of the King, or of the Governor-General, to make or authorize any inquiry, or to issue any commission to make any inquiry, it 1s hereby enacted and declared that the Governor-General may, by Letters Patent in the name of the King, issue such commissions, directed to such person or persons, as he thinks fit, requiring or authorizing him or them or any of them to make inquiry into and report upon any matter specified in the Letters Patent, and which relates to or is connected with the peace, order, and good government of the Commonwealth, or any public purpose or any power of the Commonwealth". There are, I think, two answers to this contention of the respondent. The first is that while s.1A of the Royal Commissions Act may be declaratory of the common law, it 1s also a source 12. of authority for the issue of letters patent in the name of the Governor-General. It follows that letters patent may issue in exercise of the royal prerogative or an pursuance of the authority conferred by s.1A or in reliance on both. This situation 1s to be contrasted with that in Victoria where there is no counterpart of s.1A and letters patent depend upon the royal prerogative. 'The judgments in McGuinness amin Vactoria v. Builders Labourers' Federation must be read against that background. In the present case there are four sets of letters patent, dated 10 September 1980, 25 June 1981, i April 1982 and 25 December 1982. The first is issued - "... on the advice of the Federal Executive Council and in pursuance of the Constitution of the Commonwealth of Australia, the Royal Commissions Act 1902 and other enabling powers". The second, which does no more than extend the date for reporting from 30 September 1981 to 31 December 1982, is issued "on the advice of the Federal Executive Council". The third set of letters patent, which extends the terms of reference, 1s expressed to be - ",.. in pursuance of the Constitution of the Commonwealth of Australia, the Royal Commissions Act 1902 and other enabling powers". The fourth, which makes new provision for the time within which the respondent 1s to furnish the report of his inquiry and his recommendations, is expressed in similar terms. Thus, with the exception of the second set of letters patent, each set of letters patent 1s issued pursuant to 13. ' the Constitution, the Royal Commissions Act and other enabling powers. In these circumstances I am unable to conclude that the letters patent, as distinct from any coercive powers to be exercised thereunder, depend only upon the royal prerogative. Nor am I able to conclude that the reference to the Royal Commissions Act is solely for the purpose of enabling coercive powers to be exercised. As a matter of construction of the letters patent, they are exercised in pursuance of both the royal prerogative and the Act. There 1s a further answer to the respondent's contention and it is this. The decision to be reviewed is that the respondent may call the applicant before him pursuant to subpoena and examine him on oath. Subpoenas have in fact issued. It 1s apparent that the applicant will not answer questions directed to him by the respondent or by counsel assisting the respondent, except by reason of s.6 of the Royal Commissions Act which reads : "6. If any person appearing as a witness before the Commission refuses to be sworn or to make an affirmation or to answer any question relevant to the inquiry put to him by any of the Commissioners he shall be guilty of an offence. Penalty: One thousand dollars". The decision challenged by the applicant is in truth a decision by the respondent to exercise the coercive powers vested in him by the Royal Commissions Act, hence a decision made under an enactment. 14, Decision by Governor-General? The respondent also suggested that the letters patent represented a delegation of authority by the Governor-General so that any decision made by the respondent must be seen as a decision by the Governor- General, hence excluded from the definition of a "decision to which this Act applies". Again I do not accept this contention. While at common law the issue of letters patent represent a delegation of authority, s.1A of the Royal Commissions Act empowers the Governor-General, by letters patent, to issue a commission. In that event there 1s no delegation; there is vesting of authority in the commissioner by the Governor-General pursuant to the power conferred on him by the Act. In any event, even 1f there be a delegation of authority, it would be unreal to regard a decision by the respondent to call a witness before him as "a decision by the Governor-General". Decision of an administrative character? The respondent did not argue in express terms that if there was a decision by him it was not of an administrative character. It is well established that a commissioner does not exercise judicial powers and functions. Perhaps the most direct authority is the dictum of Fullagar J. in Lockwood v. The Commonwealth (1954) 90 CLR 177 at p.181: 15. "The duties of the commission are to inquire and report. It has, in order that it may effectively perform the duty of inquiry, certain powers which normally belong to judicial tribunal. But the function which is primarily distinctive of judicial power - the power to decide or determine - is absent. The commission can neither decide nor determine anything and nothing that -it does can in any way affect the legal position of any person. Its powers and functions are not judicial". In my view the decision by the respondent to issue a subpoena and call the applicant before him was, given the nature of his powers and functions, an administrative not a judicial decision. And it was made under an enactment in the sense that it was made in exercise of a power conferred by the Royal Commissions Act. See Australian National University v. Burns (1982) 43 ALR 25 at p.32. Counsel for the respondent referred to s.3(2) of the Judicial Review Act un which reference to the making of a decision is spelt out to include reference to a number of actions there listed. Counsel argued that these actions have some finality about them such as the making of an order, the giving of a certificate or the making of a declaration, demand or requirement. But sub-s.(2) does not purport to be exhaustive, Binding authority? Counsel contended that in Ross v. Costigan Ellicott J. did not determine that a proposal by the present respondent to investigate certain allegations was a decision. At p.332 his Honour commented : 16. "For the purposes of this interlocutory hearing, I would prefer to base my decision on the view I hold that there is a probability that at the hearing what the respondent has done or evinced an intention to do would be held to be conduct engaged in or proposed to be engaged in for the purpose of making decisions to which the Act applies and that therefore one condition for the operation of s.6 of the Act would be satisfied". The contention is no doubt correct and it is also correct to say that, when the decision of Ellicott J. went on appeal as Ross v. Costigan (No. 2), it was not argued that there had been no decision by the respondent. Again, in Huston v. Costigan at p.562, in the context of an application to restrain the present respondent from receiving evidence which might prove or tend to prove that the applicant was guilty of offences with which he stood charged, I said of the course the the respondent intended to take : "It is, I thank, a decision made under an enactment in the sense that it is made under the terms of letters patent, themselves authorised by statute". But as I pointed out in the sentence immediately following : "This matter was not fully argued before me and I cannot pretend that I have reached this conclusion without hesitation". It is therefore true to say that although there have been cases in which the court has proceeded on the basis that 17. a decision comparable to that made by the respondent in the present case is a decision to which the Judicial Review Act applies, there is no authority binding me to reach such a conclusion. However for the reasons set out, I have reached that conclusion. Report or recommendation as decision Counsel for the respondent also referred to s.3(3) of the Judicial Review Act which reads : "(3) Where provision is made by an enactment for the making of a report or recommendation before a decision is made in the exercise of a power under that enactment or under another law, the making of such a report or recommendation shall itself be deemed, for the purposes of this Act, to be the making of a decision". In counsel's submission, the existence of a provision identifying such a report or recommendation as a decision carried with 1t an implication that a step preparatory thereto was not itself a decision. I do not think that sub-s. (3) has any application to the present situation. Even though the Royal Commissions Act contemplates the making of a report, 1t 1s not a report required before a decision 1s made in the exercise of a power under that Act or under some other law. See Ross v. Costigan at p.332. Nothing in sub-s. (3) operates to preclude the making of a decision during the course of an inquiry such as the respondent is conducting. In any event the applicant also relies upon s.6 which makes susceptible of review conduct engaged in or 18. proposed to be engaged in for the purpose of making a decision to which this Act applies. It is true of course that if a decision made by the respondent is not made under an enactment, conduct engaged in for the purpose of making such a decision is not susceptible of review. But if I am right 1n my conclusion that a decision of an administrative character made by the respondent in the course of his inquiry is made under an enactment, there is no reason why conduct engaged in for the purpose of making such a decision should not fall within s.6 of the Judicial Review Act. I am of opinion then that the announced intention of the respondent to call the applicant before him pursuant to subpoena, the issue of subpoenas and the directing of questions or the proposed directing of questions to the applicant together constitute a decision of an administrative character, made under an enactment; alternatively they constitute conduct engaged in for the purpose of making such a decision. Grounds of application This application lists a number of grounds but they can fairly be summarised under two heads. 1. The respondent does not have authority to inguare into the matters into which he proposes to inquire of the applicant because those matters are not within his terms of reference. 19. 2. There is no evidence or other material before the respondent to justify him making a decision to call the applicant to give evidence on those matters. Scope of inguiry In the judgment delivered on 25 March 1983 I referred to what, in the applicant's submission, were the questions for the Commissioner having regard to his terms of reference. They were : "1. Have members of the union been engaged in illegal activities? 2. Have persons associated with the union or its members been engaged in illegal activities? 3. Have persons been using the union or its members for illegal activities?" Both at that time and in the present hearing, counsel for the respondent accepted this formulation as a reasonable summary of the terms of reference. They are very wide terms indeed. In particular they require the respondent to inquire into the illegal activities of a person (including a corporation) associated with the union or any of its members. There 1s nothing in the terms of reference that confines those illegal activities to activities having some association with the union. On their face, they permit the respondent to inquire into the illegal activities of an associate of the union, no matter how remote those activities might be from the affairs of the union itself. 20. However, it is the activities of the union with which the respondent is primarily concerned and once it appears that some illegal activity of an associate of the union has no implications for the union itself or for any of its members and throws no light upon illegal activities of the union or its members, there is little justification for proceeding further with that line of inquiry. But, to reach that stage, extensive investigation may be demanded of the respondent. And, if as appears to be the case, Hamidan Pty. Ltd. had some association with the union or its members,and 1f it may have been engaged in illegal activities, it is no answer to the respondent's investigation to say {as the applicant has said) that at the time he or his clients first became involved in the affairs of the company, 1t no longer had any association with the union or its members. That 1s a matter the respondent is entitled to test, particularly when 1t is said that neither of the two union members who were directors of the company has met the relevant requirements of companies legislation for ceasing to be a director. A difficulty facing the applicant 1s that this aspect of the respondent's inquiries is only in the formative stage. How is it possible for this court to say that questions the respondent proposes to ask of the applicant bearing upon a company of which members of the union were directors cannot be within his terms of reference. As Ellicott J. pointed out in Ross v. Costigan at p.334: 21. "Where broad terms of reference are given to 1t, as in this case, the Commission is not determining issues between parties but conducting a thorough invest- igation into the subject matter. It may have to follow leads. It is not bound by rules of evidence. There is no set order in which evidence must be adduced before it. The links in a chain of evidence will usually be dealt with separately. Expecting to prove all the links in a suspected chain of events, the Commission or counsel assisting, may nevertheless fail to do so. But if the Commission bona fide seeks to establish a relevant connection between certain facts and the subject matter of the inquiry, it should not be regarded as outside its terms of reference in doing so. This flows from the very nature of the inquiry being undertaken". These considerations make it equally difficult for the applicant to sustain an argument that the respondent has no evidence or other materials before him to justify the making of the decision which he has made to call the applicant to give evidence. The very nature of the attack made upon the decision of the respondent portrays some misunderstanding of the respondent's functions. He has not made a finding, to be tested against the presence or absence of relevant evidence. He is making an inquiry and it 1s apt to borrow a passage from the judgment of the Full Court in Ross v. Costigan No. 2 at p.351 : "Counsel sought, we think in relation to this submission, to avoid an inquiry (assumed to be threatened) in relation to their clients by saying that there was no evidence linking them with members of the union or any relevant illegality, and indeed, that the evidence was 22. to the contrary. This provides no reason why the Commissioner should not inquire further, and require further evidence from them, if he considers these courses desirable in the performance of his function. We should add that 'relevance' may not strictly be the appropriate term; what the Commissioner can look to is what he bona fide bel1eves will assist him in his inqu1zry". Conclusion I have not referred in any detail to the evidence before the respondent or to the submissions addressed to him before he made his ruling of 8 December 1982. The submissions were made in confidential session and much of the evidence to which reference was made was that of X. But the matter may be tested 1n this way. Has it been shown that there is no question the respondent may ask the applicant which is relevant to his terms of reference or which bears upon a line of inquiry being pursued by him in good faith? The answer is no. It may well be that answers by the applicant will very quickly make 1t clear that any transaction entered into by his clients has no possible connection with the matters into which the respondent is inquiring. But that remains to be seen. I should add that no question of legal professional privilege was debated in these proceedings. The application must fail.